USA v. Diaz, 98-2120

• Decision Date: 27 August 1999
• Docket Number: No. 98-2120,98-2120
• Citation: 189 F.3d 1239
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROQUE DIAZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1239

189 F.3d 1239 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROQUE DIAZ, Defendant-Appellant.

No. 98-2120

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Aug. 27, 1999.

As Amended on Denial of Rehearing And Suggestion for Rehearing En Banc Oct. 15, 1999.

Appeal from the United States District Court for the District of New Mexico. Cr. No. 97-227 JP

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Lissa J. Gardner, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with her on the briefs) , Las Cruces, New Mexico, for Defendant-Appellant.

Jason Bowles and Fred Joseph Federici, III, Assistant United States Attorneys (John J. Kelly, United States Attorney, Renee L. Camacho, Assistant United States Attorney on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRORBY, EBEL and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Mr. Roque Diaz appeals his conviction following a jury trial for attempt to possess with intent to distribute more than 500 grams of cocaine, a violation of 21 U.S.C. § 846. He argues that: (1) his due process rights were violated by the procedures of the District of New Mexico that resulted in five judges hearing various portions of his case; (2) the district court should have dismissed his charges based upon "outrageous government conduct"; (3) the court abused its discretion by excluding the testimony of his expert witness; and (4) the court improperly failed to grant a downward departure. We affirm the judgment of the district court, holding that no due process violation, outrageous government conduct, or abuse of discretion in the exclusion of testimony has been shown, and that we have no jurisdiction to review the denial of downward departure.

FACTS

Defendant-appellant Mr. Roque Diaz was arrested on March 6, 1997, following a "reverse sting" operation, in which law enforcement officers working undercover portray themselves as drug dealers. A videotape recorded Drug Enforcement Administration (DEA) Special Agents Steve Woodson and Kurt Nelson, along with New Mexico State Police Agent Clifford Frisk consummating the "sale" of cocaine to Mr. Diaz in a motel room.

The agents had become aware of Mr. Diaz's involvement in a drug distribution scheme after the arrest of Jose Antonio Legon, who informed the agents that he had supplied marijuana to Mr. Diaz on two earlier occasions. Mr. Legon pled guilty to charges filed against him and agreed to cooperate with the government. In January of 1997, Mr. Legon informed Agent Woodson that "Lorenzo Roque" was interested in purchasing at least five kilograms of cocaine; he further provided a telephone and pager number for "Roque." The DEA issued an administrative subpoena for the pager number and learned that it was subscribed to by Mr. Roque Diaz. Utilizing Mr. Diaz's social security number, the DEA determined that he had a 1991 conviction in Oregon on two counts of distribution of cocaine. See Rec. vol. V, at 34-37.

On January 15, 1997, Agent Nelson called the pager number provided by Mr. Legon for "Lorenzo Roque," and Mr. Diaz answered. They discussed the price of a kilogram of cocaine. Mr. Diaz then called Agent Nelson on January 16, 1997 to say that he wanted Agent Nelson to take five kilograms of cocaine to Portland. On January 21, 1997, Mr. Diaz asked Agent Nelson to "front" him two kilograms of cocaine, i.e., to provide the cocaine while allowing Mr. Diaz to pay later. They had two more conversations, and Mr. Diaz paged Agent Nelson three times.

On February 8, 1997, Mr. Diaz told Agent Nelson he had no money and that he would contact him later, when the situation changed. On Feb. 20, 1997, Agent Nelson called Mr. Diaz again, but Mr. Diaz repeated that he had no money. On February 25, Mr. Diaz asked Agent Nelson if he could exchange jewelry for cocaine. Agent Nelson suggested Mr. Diaz come to El Paso, assuring Mr. Diaz that they could work something out, and that Agent Nelson would help Mr. Diaz get the drugs back to Portland. They had six additional conversations. Mr. Diaz arrived in El Paso on March 6, having purchased a ticket at his own expense. Agent Woodson met Mr. Diaz at the airport and drove him to Las Cruces. They discussed how to get the cocaine to Portland, and Mr. Diaz asked if someone could mail it.

After Mr. Diaz arrived in the motel room, Agent Frisk brought the cocaine. Mr. Diaz inspected it with a knife provided by Agent Frisk. Mr. Diaz never gave the agents any money: the agents stated that they would mail the $100,000 worth of cocaine, and Mr. Diaz agreed that he would pay for it in eight days. Mr. Diaz instructed Agent Nelson to send the cocaine to his uncle, so the Agent re-packaged it, and left the motel room with the cocaine. Other law enforcement officers then arrested Mr. Diaz.

Mr. Diaz was arraigned in the United States District Court in Las Cruces, New Mexico, on April 7, 1997. He was represented by the Federal Public Defender's office in Las Cruces. On May 7, 1997, the district court adopted a new policy of handling cases, under which a different district judge from Albuquerque sits in Las Cruces each month. Because of this rotating assignment system, four different judges from the District of New Mexico ruled on Mr. Diaz's pretrial motions. The trial was conducted by the Honorable Adrian Duplantier, a visiting judge from the Southern District of Louisiana. Judge Martha Vazquez from the District of New Mexico conducted the sentencing proceedings.

During the trial, Judge Duplantier excluded expert testimony offered by Mr. Diaz as to Mr. Diaz's subnormal mental functioning. He reasoned that Mr. Diaz had provided insufficient notice, the district court could not compel the government to agree to a telephonic witness, and the report was irrelevant.

At sentencing, Judge Vazquez ruled that the court did not have authority to depart downward based on sentencing entrapment, diminished mental capacity, or a combination of those factors when there was a statutory minimum in place. Thus, she sentenced Mr. Diaz to 120 months imprisonment, followed by an eight-year period of supervisory release.

DISCUSSION

1. DUE PROCESS AND JUDICIAL ASSIGNMENT

Mr. Diaz first argues that the assignment of five district judges to handle various portions of his case violated his due process rights under the Fifth Amendment. The alleged violation of Mr. Diaz's due process rights is a legal question that we examine with de novo review. See United States v. Nichols, 169 F.3d 1255, 1267 (10th Cir. 1999).

Mr. Diaz argues that the assignment procedure is not authorized by rule or order, and that, even if the district court had the authority to adopt the procedure, judicial efficiency is an improper purpose to justify rotating judicial assignments. We are persuaded by neither argument.

Mr. Diaz's challenge to the district court's authority to adopt the procedure is undermined by 28 U.S.C. § 137, which vests the district court with broad discretion in assigning court business to individual judges. It provides that "[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court." Further, Fed. R. Crim. P. 57(b) provides that when there is no controlling law "[a] judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district."

In light of this discretion in managing court business, we agree with the Fifth Circuit that: "[d]istrict judges may by rule, order orconsent transfer cases between themselvesa. . . . Each judge of a multi-district court has the same power and authority as each other judge. . . . Moreover, the District Judges have the inherent power to transfer cases from one to another for the expeditious administration of justice." United States v. Martinez, 686 F.2d 334, 338 (5th Cir. 1982) (quoting United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969)) (emphasis added).

We are not persuaded by Mr. Diaz's suggestion that the absence of a written policy or order renders the rotating assignment system invalid. It is obvious that the judges of the district in question regularly show up for work, and they seem to balance their assignments systematically, in all likelihood so that their more voluminous regular dockets in their resident chambers can proceed as efficiently as possible, given the necessity of traveling to other courthouses. In supplemental briefing, the government provided a letter from the Chief Deputy Clerk for the District of New Mexico confirming the rotation policy. The letter states that: "[w]e have no order or formal document setting forth the monthly rotation of District Judges in Las Cruces," but that the rotation "was discussed and agreed to by all the Judges at a Judges' Meeting," and that "[c]alendar coordination is worked out among Judges and case managers." Aple Supp. Br., Ex. 2. The government also provided an order from the Chief Justice of the United States Supreme Court appointing Judge Duplantier to perform judicial duties in the District of New Mexico during the period of March 31, 1997 to December 31, 1997, which includes the time period of Mr. Diaz's trial. As transfers may occur both by order and by consent, the District of New Mexico was authorized to adopt the rotating assignment system through an agreement at a judges' meeting.¹

We are similarly unpersuaded by Mr. Diaz's contention that it is improper to justify the use of a rotating assignment system on the grounds of judicial efficiency. This argument fails as courts have long considered judicial efficiency a proper justification for transferring cases between judges. See Martinez, 686 F.2d at 338 (approving judicial transfer to promote "the expeditious administration of justice"); cf. Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). Mr. Diaz also apparently argues with the district judges as to whether their system is...